THE Public Information

Office of the Supreme Court served notice on the people of the Philippines: the high tribunal has pronounced psychological incapacity found in Article 36 of the Family Code, a ground for the absolute nullity of marriage, as a legal and not a medical concept. That was not breaking new ground, because it has always been a legal concept.

Guilt, negligence, delay, capacity — all these are legal concepts, even if the man (or woman) on the street uses them for nonlegal purposes.

They are, in fact, prime examples of something I cited from postmodern philosophy that earned me so much flak not too long ago. A legal concept is the way the law organizes data. It is the way it characterizes evidence at hand. So, when a group of persons contributes towards the accumulation of capital with which they do business and for which they hold “shares,” expecting dividends, the law uses the construct “corporation.” And if one should try to look up psychological incapacity in the Diagnostic and Statistical Manual for Mental Disorders, one will not find it, any more than one will find the concept of analysis of covariance in the Revised Penal Code.

The philosophical approach of logical analysis requires for a term to be meaningful, some facts must count to justify its use and distinct ones against it. When there is no verifiable way of distinguishing correct and incorrect uses of a term, that is when one really treads on several fathoms of water without the divine ability to walk on it. This is the reason for every legal concept, there are indicia. For every crime defined, there are elements. For a promissory note to be correctly used, one must deal with a written unconditional promise to pay a definite sum at some fixed date, or upon demand the payee may negotiate to another and to negotiate is just one more legal construct. But the point is you need facts to decide whether the concept should apply or not.

I think, though, what we know of the pronouncement of the Supreme Court suggests two points, perhaps among others, very strongly. First, psychiatrists and psychologists do not get to decide when one of the spouses or both is psychologically incapable of fulfilling the essential obligations of marriage. While at some time in the past, jurisprudence over this relatively new provision of Philippine law indicated the necessity of so-called “expert testimony,” giving rise to the complaint only those who could afford the fees of psychiatrists who are not known to accept a pittance, would be able to get favorable judgments in nullity cases, later decisions held it was not at every turn experts had to be called upon. To emphasize that it is a legal concept is to stop the fruitless search for a disease or a disorder called psychological incapacity and to challenge judges to make use of their powers of discernment. But psychiatric evidence will still be crucial in many cases. When a person is diagnosed as narcissistic, the court should have no difficulty concluding his inability to care for his partner to the degree of selflessness marriage requires.

In a clear break from precedent, however, the court, we are told, has ruled psychological incapacity need not be a mental nor a personality disorder, it need not be permanent and the distinction between absolute incapacity (incapacity relative to all partners) and relative incapacity was henceforth impertinent. And this has revved up the excitement in the legal community. Was this not judicial legislation, some have asked? Did not the legislature mean something definite by psychological incapacity?

For one thing, in contemporary legal hermeneutics the concept of legislative intent as the adventure of mental archaeology has fallen into disfavor. Whose intent? The sponsor? The members of the standing committee? The members of the legislature who voted in favor of the measure? The intent of the members of the bicameral conference committee? Whose brains do we start picking? And so, in unison with Ricoeur, Gadamer and others, the position today seems to be the text and what it holds are where intent will be found and if this is the case, then all we have in Article 36 is psychological incapacity that does open itself to variant construal.

Much has been made of the fact psychological incapacity was a category lifted from the Code of Canon Law, but historical context suggests it was hardly anything more than the term lifted, not really the canonical jurisprudence that accompanied it. The commission that drafted the Family Code included Justice Ricardo Puno who gave me an account of the deliberations in that group. Some of the commission members wanted divorce; others, predictably, strenuously opposed it, Puno among them. The phenomenon of dysfunctional marriages was already known then and the commission was minded on doing something about it. The grounds for nullity provided by the Civil Code were narrow and strict. Psychological incapacity was thought to provide enough berth to quiet for the moment the agitation for divorce by providing for an “easier” way out of impossible marriages.

And it was in the Molina case we got from Chief Justice Art Panganiban admonition Article 36 should be construed as canon law interpreted it, so Philippine and canonical jurisprudence could march in perfect cadence. It seems the high court has tired of the rhythm and has decided to march to its own beat. What was laid down by jurisprudence can be undone by jurisprudence.

I hope though it was not the intent of the court to provide a means of ‘undoing’ a marriage valid in every other respect because of discomfiture with what appears to be popular intransigence about allowing outright divorce in the Philippines, for if that were the case, then we might have to review the delicate calibration of powers between the three coordinate branches of government — not that a tripartite system of the kind laid down in the US constitution is indispensable to a democracy, because the United Kingdom fuses the executive with its legislature with democracy none the worse for this type of government, but because that is the apportionment our Constitution ordains.